THIMMANNA BHATTA Vs. RAMA BHATTA AND

JUDGEMENT

(1.) The plaintiffs who are reversioners are the appellants and their suit was to set aside an alienation made by a widow (Ex. 3) in 1875. The facts are these: One Sham Bhatta died in or about the year 1870. He left behind him his minor son Narayana who died in 1874 when he was about eight years old, a widow Lakshmi, his mother Aithamma and his brother's widow Gangamma. Lakshmi died in or about the year 1913. In 1875, aha sold the suit property (Ex. 3) to the father of defendant 1 and another. The present suit is to set aside the alienation. To examine the nature of the consideration for the sale, we have to refer back to two previous alienations with respect to this property made by Lakshmi in 1872 and 1874 under Exs. 1 and 2. The property consisted of land yielding 42 Muras of rice a year and also eight kandies of areca-nuts and 1000 cocoanuts. It is in evidence that on the whole, the income from that property at that time may be about Rs. 280. Ex. 1 was a mortgage with respect of some portion of the property in favour of Thimmanna Bhatta for Rs. 400. It was for discharging "my sundry debts incurred for building my house and for my family expenses". Ex. 2 was an Arwar for 50 years. This related to the entire property and this was in favour of Lakshmi's sister's husband and was for Rupees 1500. The consideration for this document is made up of as follows: (1) Rs. 400 for discharging Ex. 1, then (2) Rs. 635 in settlement of accounts in respect of sums borrowed for the medical treatment of her son Naraina who had been suffering from consumption for about two years, (3) Rs. 197 borrowed for future treatment of the same person, (4) Rs. 268 paid by the mortgagee to one Bhatta who had passed a receipt for the same. This must have been money borrowed by Lakshmi, (5) Payment of maintenance to Aithamma, Rs. 20 per year, and Gangamma at the rate of Rs. 28 per year. This document is attested by the plaintiff's father.

(2.) Then we come to Ex. 3, the suit document. Neither Ex. 1 nor Ex. 2 having been discharged, provision had to be made for the discharge of the same by this document. So item 1 of consideration was the payment of Rs. 1100 towards the discharge of Ex. 2, the second payment of Rs. 464 was for discharging Ex. 1. Item 3 consisted of Rs. 800. This was the consideration for the mortgage evidenced by Ex. 5 which we find from the document was executed for the benefit of Lakshmi. Item 4 was Rs. 27-9-7 to be paid by the vendees for assessment. Item 5, Rs. 72, was to pay to Govinda Bhatta for money borrowed by Lakshmi. Item 6 was a sum of Rs. 600 odd, received in cash for stamps, etc., for personal debts and for necessities. By item 7, the vendees agreed to pay Aithamma Rs. 67 per annum for her maintenance till her death as she, by that time, got a decree for that sum and a sum of Rs. 28 was agreed to be paid for maintenance to Gangamma till her death. This obligation was discharged by an actual payment of two sums of Rs. 500 to the two widows at the time of the execution of this document. Thus it may be said that the total consideration for Ex. 3 was Rs. 4000 which the learned Judge says, is not inadequate for the property. The plaintiffs father, the then nearest male reversioner joined Lakshmi in executing this document. It is" this document that is now called into question by the appellants.

(3.) It is argued generally that the consideration for the document is not binding, that Exs. 1 and 2 were executed by Lakshmi as the owner of the property which she was not and therefore these are not binding on the estate, that Lakshmi has no power to execute the same and that no satisfactory and sufficient proof of necessity for executing the document has been made out. It is said that when Lakshmi got into possession of the property on the death of her husband, the property remained intact and unencumbered and within five years, it had vanished by these transactions. It is, therefore, stated that the dealings cannot in any way bind the reversioners. On the other hand, it is argued by the respondents that there is sufficient necessity to support the document that the consideration is binding on the estate and the general circumstances would also show that the transaction cannot be questioned at this distance of time. Before we examine the actual binding character of the considerations, we may point out certain general features of the case which will be useful in appreciating the arguments advanced before us. We have already stated that full consideration for the document has been paid. The document is a very ancient one. The suit was filed in 1923. Lakahmi is said to have died in or about 1913. From the evidence, it becomes clear that plaintiff 1 attained his majority in or about the year 1887. He could have instituted a suit for declaration that the alienation was not binding on him some time between 1887 and 1890. That has not been done in this case. If that had been done, the defendants would have been able to produce better and clearer evidence, with regard to the necessity before the lower Court. The father of defendant 1 died in 1919. He was one of the vendees of the properties. Though the plaintiffs failed to institute the suit as mentioned above between 1887 and 1890, plaintiff 1 might well have instituted the wait at least before 1919. If that had been done, the vendee himself could have men asked questions about the nature and the binding character of the transaction and other relevant facts in support of the same.